Date: 20011128
Docket: T-1444-00
Neutral citation: 2001 FCT 847
Toronto, Ontario, Wednesday, the 28th day of November, 2001
PRESENT: Peter A. K. Giles, Esquire
Associate Senior Prothonotary
BETWEEN:
RAGDOLL PRODUCTIONS (UK)LIMITED and
THE ITSY BITSY ENTERTAINMENT COMPANY and
THE ITSY BITSY ENTERTAINMENT COMPANY (CANADA), INC.
Plaintiffs
-and-
WONDERLAND COSTUMES LTD. and
MARY MARTINO
Defendants
AMENDED REASONS FOR ORDER AND ORDER
GILES A.S.P.
[1] The motion before me seeks leave to file an amended statement of defence and counterclaim. The amendments were made in response to an order of mine which refused to allow the late filing of the original statement of defence and counterclaim because the Court had no jurisdiction to determine at least part of the counterclaim. Because there were no specific objections to the defence itself, I provided that the Defendant might seek leave within 30 days of the date of my order to file an amended defence and counterclaim. On the 31st day, the motion now before me seeking leave was filed. The Plaintiff objects to leave being granted:
a) because the motion is filed a day late;
b) because in their defence, the Defendants appear to admit that the individual Defendant did on behalf of the Corporate Defendant infringe;
c) because the counterclaim pleads no cause of action;
d) if a cause of action is established, because it is not properly pleaded;
e) because particulars are required.
[2] In addition, they allege that the counterclaim viewed separately from the claim must be within the jurisdiction of the Court and they allege that it is not.
[3] There is no motion before me seeking an extension of time. But, I would have been inclined to grant an extension of my own motion were it not for the fact that the document should not be allowed to be filed.
[4] The apparent admission of liability of the Corporate Defendant coupled with the apparent admission that the individual Defendant apparently actually did the infringing act, but did so in her capacity as an officer, raises a point of law as to whether a person who does act is not responsible because she does it as an officer or director. In my view, it has for many years been held in this Court that the person who infringes is responsible. If she does so in a corporate capacity it is a nice but academic point as to whether the corporation is directly or vicariously responsible as well as the individual. The defence therefore would at least in part be struck, if allowed in, so it will not be.
[5] The Plaintiffs' allegation that the counterclaim pleads no cause of action must succeed so far as a cause within the jurisdiction of this Court is concerned. The closest I can come to finding a suggestion of a cause is a hint of a cause in the nature of trade libel which might exist under section 7 of the Trade Marks Act or the Competition Act (neither is pleaded). Such a cause has to be very specifically pleaded which certainly has not been done here. The who, when, where and how of any trade libel cause are missing as is any allegation that the libel was accomplished by use of a trade mark. Such a tie is necessary to bring the trade libel within the prohibition of section 7 and render that section intra vires for the purpose.
[6] I must also consider whether in the circumstances I should again allow the Defendant to seek leave. The tendered defence contains allegations, which if proved might affect the quantum of damages. Such facts could no doubt as readily be proved on any assessment of damages. However, the claim seeks injunctive relief and the same facts which might modify damages might also have bearing on the availability of injunctive relief. I therefore intend to allow one more chance to frame a defence but that will not extend to a counterclaim which is clearly hopeless.
ORDER
1. The motion is dismissed with leave to re-apply within 30 days to file a defence which does not contain a counterclaim seeking damages.
"Peter A. K. Giles"
A.S.P.
Toronto, Ontario
November 28, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-1444-00
STYLE OF CAUSE: RAGDOLL PRODUCTIONS (UK)LIMITED and
THE ITSY BITSY ENTERTAINMENT COMPANY and THE ITSY BITSY ENTERTAINMENT COMPANY (CANADA), INC.
Plaintiffs
-and-
WONDERLAND COSTUMES LTD. and
MARY MARTINO
Defendants
CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369
AMENDED REASONS
FOR ORDER AND ORDER BY: GILES A.S.P.
DATED: WEDNESDAY, NOVEMBER 28, 2001
WRITTEN SUBMISSIONS BY: Mr. Lorne Lipkus
For the Plaintiffs
Mr. Kenneth Alexander
For the Defendants
SOLICITORS OF RECORD: Kestenberg Siegal Lipkus
Barristers & Solicitors
65 Granby Street
Toronto, Ontario
M5B 1H8
For the Plaintiffs
Page: 2
SOLICITORS OF RECORD:
(Cont'd)
Ball & Alexander
Barristers & Solicitors
82 Scollard Street
Toronto, Ontario
M5R 1G2
For the Defendants
FEDERAL COURT OF CANADA
Date: 20011128
Docket: T-1444-00
Between:
RAGDOLL PRODUCTIONS (UK)LIMITED and
THE ITSY BITSY ENTERTAINMENT COMPANY and THE ITSY BITSY ENTERTAINMENT COMPANY (CANADA), INC.
Plaintiffs
-and-
WONDERLAND COSTUMES LTD. and
MARY MARTINO
Defendants
AMENDED REASONS FOR
ORDER AND ORDER